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2019 DIGILAW 655 (ORI)

Kartik Chandra Jena v. State of Orissa

2019-12-04

BIBHU PRASAD ROUTRAY, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. 1. In this appeal, the convict/appellant-Kartik Chandra Jena assails his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C." for brevity), in Sessions Trial No. 441/41 of 1997, passed by the learned Additional Sessions Judge, Jajpur as per the judgment dated 07.09.1998. 2. The prosecution case can be adumbrated as follows: "On 17.09.1995 deceased-Narendra Kumar Das, who was working as Development Officer, L.I.C. of India, Jajpur Town Branch went to the house of accused Kartik Chandra Jena to take part in the latter's Biswakarrria Puja festival That night Narendra did not return home. So on the next morning the informant (father of the deceased), went to the house of the Kartik to enquire about his son and saw him lying like a dead man. Seeing the condition of Narendra the informant became shocked and lost his sense. At that time accused Kartik and his three brothers took Narendra to the nearest hospital where he was declared dead. The F.I.R was lodged at Bari Police Out Post at 10.15 A.M. on 18.09.1995. Later on having smelt a foul play in the matter, the informant gave another report, i.e., (Ext. 6/1) to the Superintendent of Police, Jajpur for investigation. The Investigating Officer took up the investigation and after completion of investigation, he laid charge sheet against Kartik and one Bharat Chandra Jena." 3. The defence took the plea of complete denial of the prosecution story and further pleaded that they have been falsely accused in this case. 4. In order to prove its case the prosecution has examined 11 witnesses and the defence examined three witnesses. The prosecution also adduced several documents into evidence as Exhibits. 5. Learned counsel Mr. Nityabrata Behuna, on behalf of Mr. Debasnan Das, appearing for the appellant in this case, submits that the learned Addl. Sessions Judge in an erroneous approach has wrongly appreciated the evidence to find the guilt on the appellant and in fact, there is no completion of chain of circumstances in this case as no poison was detected from possession of the accused He criticized the judgment rendered by the learned Addl. Sessions Judge to be based on conjecture and surmises. 6. The learned Addl. Govt. Advocate on the other hand supported the case of the prosecution and submitted that the learned Addl. Sessions Judge to be based on conjecture and surmises. 6. The learned Addl. Govt. Advocate on the other hand supported the case of the prosecution and submitted that the learned Addl. Sessions Judge has a clear view of the evidence available on record and has come to a proper conclusion which requires no interference by this Appellate Court. 7. Admittedly, in this case there is no eyewitness to the occurrence. The prosecution case relies upon circumstantial evidence and the circumstance that has been taken to consideration by the learned Addl. Sessions Judge are as follows: "(1) Narendra, the deceased died due to administration of poison. (2) He was present in the house of the accused person who had arranged medicine for him and removed him to the hospital. (3) It was obligatory on the part of the accused to explain the circumstances under which Narendra fell sick in his house and why his sickness was not reported in the house of Narendra and no steps were taken for his immediate removal to his own house or to any hospital for treatment. (4) The deceased and the accused were close friends and the deceased had given a friendly advance of Rs. 1,00,000/- to the accused out of public fund available with him. (5) Kartik refused to pay back the money to Narendra, the deceased for which the deceased was in a stumble state of mind. (6) Some days after the refusal of the Kartika to pay back the money the deceased went being invited to the house of Kartika to attend Biswakarma Puja festival. (7) In the same night he fell sick in the house of Kartik for which Kartik with the help of Khirod and others arranged medicine and the condition of Narendra became worse in the night. (8) His pulse rate was very low and after Narendra's father got shocked to see deceased's condition, Kartik and his brothers took Narendra to the shop of P.W. 1 and from there to the P.H.C. where he was found dead." 8. From the materials available on record, these aspects of the case does not appear to be completing the chain of circumstances. In this case there is no dispute that the deceased died due to Organo Phosphorous poisoning but no poison was found in the possession of the appellant convict. In fact at Page-15, Paragraph 14, the learned Addl. From the materials available on record, these aspects of the case does not appear to be completing the chain of circumstances. In this case there is no dispute that the deceased died due to Organo Phosphorous poisoning but no poison was found in the possession of the appellant convict. In fact at Page-15, Paragraph 14, the learned Addl. Sessions judge, has observed as follows:- "xxx xxx the insecticide seized under Ext. 11 was seized from a jute field thrown from the house of the accused and that insecticide has nothing to do with the poison found from the vomit material and viscera of Narendra. So here is a case where no recovery of poison was made from the accused. So his conscious possession about the same is immaterial, xxx xxx" 9. At this stage, we take note of off quoted judgment of Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 wherein the Hon'ble Supreme Court has decided regarding the proof of a prosecution case in the case of a alleged poisoning. At paragraph 165, the Hon'ble Supreme Court has in very clear terms laid down the circumstances that are necessary for justifying a conviction. We quote the same, which reads as follows: "165. So far this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased." 10. Thus it is very essential for the prosecution to prove all such circumstances and only then conviction can be justified by the appellate court. In this case we have already quoted the learned Addl. Sessions Judge in the preceding paragraph that this is a case where prosecution has not proved the conscious or exclusive possession of poison by the accused: In fact the poison that was found in the jute field near the house of the accused was found to be a different kind of Organo Phosphorous than the one that was found in the viscera and vomit materials of the deceased. Thus, in this case as there is a break in the chain of circumstances, the circumstantial evidence led by the prosecution cannot be held to be sufficient to secure of conviction of the appellant. Therefore, we are of the opinion that the appellant is entitled to be acquitted of the charges as the chain of circumstances is not forming complete unerringly pointing out towards his guilt. Accordingly, the appeal is allowed. 11. The judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge in the aforesaid case is hereby set aside. From the records, we have seen that the appellant was granted bail during pendency of the Criminal Appeal on 16.02.2006. The learned Add. Sessions Judge shall examine the record and if he has already been released, no further orders be passed, but if he has not availed the opportunity of granting of the bail then he shall be set at liberty forthwith If his, detention is not necessary in any other case. With such observation, the appeal is allowed. The L.C.R. be returned back to the lower court immediately by the registry.